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1 Overcoming Juror Bias in TBI Trials Timothy R. Titolo Attorney (Reprinted with Permission: NeuroLaw Letter, October 2000; Advocate NTLA, October 2001) I. Introduction Juror bias. It can work for or against either side. How do we recognize it, manipulate it and control it? This article addresses juror bias in Traumatic Brain Injury cases. The so called "unseen injury" needs to be projected for the jurys viewing. Brain Injury requires special considerations to accomplish this. What I do to overcome juror bias is based on my own perception of that bias and my personal experience. This article is written for lawyers. I hope some of these thoughts will be helpful in your efforts in litigating Brain Injury Cases.

II. PRESENCE OF THE INJURED PLAINTIFF AT TRIAL

Mild to Moderate brain injury cases will not leave a person drooling, and hunched over with a wild-eyed gaze and unable to communicate. To the contrary, a person with a mild-moderate brain injury (also referred to as a "closed head injury" or "CHI") can appear very normal in many aspects and interactions. However a traumatically brain injured individual has a "lack of awareness," and, coupled with the fact that many head-injured patients treated at emergency facilities do not have obvious clinical signs of CHI, makes the attorney, more often than not, the first professional to recognize the symptoms..."(Head Trauma Cases, vol. 2, p 18-4 Roberts 1996) That being the case, you should be careful to remember that your first impression of the Plaintiff may well be the jurys first impression. Until doctors and witnesses have a chance to describe the Plaintiffs disability, a jury could reasonably conclude that, since your client looks okay, she must be okay. Therefore I elect not to have the client in the courtroom until she testifies. This approach has been widely criticized. After all when do you ever not have your injured client in the courtroom? My, and several successful brain injury lawyers I am familiar with, answer that by referring to brain injury cases. The jury does not need to stare at the Plaintiff for 5-10 days while the trial goes on day after grueling day. They do not need to see the Plaintiff chuckle under stress in the courtroom hallway. And why should they? Consider that this is the only opportunity they will have 2 to judge the Plaintiff. Is this a fair representation? How many trials has the Plaintiff sat through in her lifetime? This is an unusual experience - for both Plaintiff and Jury. I explain to the jury that the reason the Plaintiff will not be in the courtroom for most of the trial is that her doctors have told me that it would not be good for the Plaintiff to sit through the trial while the doctors explain what is wrong with her. I may have her there for voir dire and then excuse her until I bring her in to testify briefly. By the time this happens, the jury has heard from the neurologists and neuropsychologists who have explained that the injuries Plaintiff has would not prevent her from testifying. Right away the jury perceives you as being the attorney concerned for your clients well being. Every time you can make the jury want you to win you are overcoming juror bias.

III. VOIR DIRE

The first opportunity you will have to overcome Juror bias is Voir Dire. Typically this is when you meet the venire for the first time and let them know what your case is all about. This is when you can start to explain the facts of the case and injuries. Jurisdictions vary on how to conduct Voir Dire but virtually all allow input from the attorney. Whatever the method, prepare specific questions to ask, or have the Court ask, and utilize specific terminology. For Instance, "Is anyone familiar neurology or neuropsychology?" Whether they are or not, you are conditioning the jury to hear about neurological issues. You are also telling them about the type of injury. It is a good idea to have 50 questions or so for Voir Dire. If some questions are disallowed, chances are others will not be. Your objective of conditioning the jury and overcoming bias is achieved.

IV. OPENING STATEMENT

The Opening Statement is a great opportunity to cause the defense to lose a lot of credibility. By now you have taken the defense experts depositions and you know the direction of the defense. If the lawyer gets up and says something like "the plaintiff did not get brain damage" and even his experts say Plaintiff did, then juror bias will work against the defense! Be sure to keep exhaustive notes or have a daily transcript so you can go over what the defense lawyer promised in his opening and what their experts said during your cross examination.

This can make a Plaintiffs lawyer look brilliant. As stated above, this is when you should tell the jury why you have decided not to have your client present during the trial. You can tell them that the doctors who will be testifying will be talking about Plaintiffs injury and that you, and they, thought it would not be in the Plaintiffs interest to hear that testimony during this trial. In your story narration, be sure to use words of action and words that cut right to the description. Words like "crash", and "brain damage". Go through the witnesses you will have at trial, even defense witnesses, and what they will say Plaintiffs condition is, how it was caused and how long she will have to live with it. This further conditions the jury about your clients injury and how it will affect her for the rest of her life.

V. DIRECT AND CROSS EXAMINATION

Each lawyer has, and should exhibit, their own particular style. My all time favorite is the defense lawyer who gets caught up in the trial, walks across the courtroom floor and points his finger in Plaintiffs experts face and accuses him of something the lawyer cannot support. The defense then tries to get concessions from the jury during closing by apologizing. This tactic does not work in the Brain injury cases I have been involved in. Be as polite to the Court and other Counsel as possible. Never forget that the jury is watching everything with multiple sets of eyes. Be prepared. I have watched defense counsel, all too often, walk up to cross examine an expert with a Binder in tow and start fumbling around, getting papers caught on 3-ring binders, searching for that all important question. When it is finally asked, everyone gets the feeling that it was not worth the effort or time. Anticipate your moves in the Courtroom. After many trials this is not as much of an issue. Traumatic Brain Injury trials are complex and many defense lawyers do not routinely handle complex trials. They handle many trials but not many complex trials. Plaintiffs counsels advantage is in handling complex trials. The preparation you exhibit to the jury, especially if defense counsel does not, will go a long way in making the jury want you to win and overcoming juror bias.

VI. CLOSING

Many times a jury, I have learned by polling them after a trial, feels that the multiple objections made by the defense lawyer were just a normal part of trial. It is what lawyers are "supposed to do." I try to diffuse this by explaining it in light of how many objections the defense lawyer makes compared to how many I make and asking them if the defendant is trying to hide something. Most of defendants objections are overruled anyway. Where is the search for truth and how are these tactics helping the jury get there? Prepare a chart of a calendar of the past several trial days and go over it with the jury. List the witnesses that were presented each day and what they said. This is a great tool to help the jury remember the evidence. It also allows them to see the number of plaintiffs witnesses and defendants witnesses. If the Plaintiff were not entitled to compensation then why did each side spend so much money and time on witnesses? Put numbers in another chart according to your expert evaluations. Add them up and write in an amount that the experts have told the jury is fair. Tell the jury you do not want sympathy but you also do not want discounted justice. All you are asking for is what your client is entitled to.

VII. CONCLUSION Overcoming juror bias occurs throughout a trial. However it can be done even against the backdrop of "personal responsibility", "frivolous lawsuits" and "increasing insurance premiums." A Traumatic Brain Injury is something no person, or juror, would ever accept any amount of money for. A trial attorneys job is to make them realize that.

Timothy R. Titolo is a trial attorney from Las Vegas, Nevada. He concentrates on cases of traumatic brain injury and spinal cord injury. Mr. Titolo speaks at brain injury seminars nationwide. Titolo Law Office 10100 West Charleston, 100 Lsa Vegas, Nevada 89135 Tel.702.869.5100 Fax.702.869.5111 Website: titololawoffice.com Email: info@titololawoffice.com

Timothy R. Titolo is Las Vegas and Nevadas experienced trial attorney. Mr. Titolo handles all types of personal injury cases, including catastrophic and serious injuries and wrongful death. He has particular expertise in traumatic brain injury (TBI), spinal cord injury and nerve damage cases.

Titolo Law Office has earned a reputation for achieving significant results. Through his successes, as well as by writing articles and giving presentations to attorneys and medical professionals around the country, Mr. Titolo has garnered the respect of colleagues.